State rewrites rules on restraining students

AUGUSTA, Maine — The Department of Education’s draft of new rules for the use of restraint and seclusion of students in public schools has members of a stakeholders group concerned that key provisions have been altered.

Most of the concern centers on the definition of restraint and the process laid out for secluding a student from others, though Diane Smith Howard, a staff attorney for the Augusta-based Disability Rights Center, said the proposed rules overall are a vast improvement over what is already on the books.

Smith Howard, who with a group of others spent several months developing recommendations, said she and others intend to contest some provisions that have been changed from what the stakeholders’ group wanted.

The department released its draft of the proposed rules this week and expects to present it to the Legislature after a public hearing process.

“Many of the things we found important are included, but I do have some serious concerns,” said Smith Howard, whose organization has represented dozens of students over the years who she said have been improperly restrained or put into seclusion because of severe behavior problems. “What the Department of Education has done was make some pretty substantial changes. We’re not entirely happy with it.”

The Legislature formed the stakeholders group under a little-used process known as consensus-based rule-making. Educators, child advocates and parents spent most of this year pouring through Chapter 33 and writing recommendations, which they forwarded to the Department of Education in late September. The department used those recommendations to draft a new rule, which will be subject to public hearings in December. The draft of the new Chapter 33 is published on the Department of Education’s website.

Of chief concern to Smith Howard, who on Friday still was analyzing the department’s draft for members of the stakeholders group, were definitions for restraint and seclusion.In the case of physical restraint, which is when a student in a behavior crisis is pinned to the floor in a prone position or held from behind by educators, Smith Howard and the stakeholders were successful in eliminating the words “therapeutic restraint” from the rule. However, the Education Department’s addition of the word “forcible” in the definition opens schools up to legal ramifications, she said.

“Physical restraint is an intervention that restricts a student’s freedom of movement or normal access to his or her body, and includes the forcible moving of a student against the student’s will,” reads the Department of Education’s draft of the new Chapter 33.

Smith Howard said the stakeholders considered the word “forcibly” at length and didn’t include it because it creates a legal gray area that might force a judge or a jury to interpret what is forcible and what is not.

“We intentionally had not added modifiers to that definition,” said Smith Howard. “This really just opens up the door to litigation.”

Smith Howard also took exception to a single word she said the Department of Education inserted into the definition for seclusion, which is when a student who presents imminent harm to himself or others is confined to a room or area. Smith Howard said the intent of the stakeholders on this point was to make sure a student is never locked in a room, but the Education Department’s draft defines seclusion as a student being “physically prevented from leaving” the seclusion room.

“The department made a change that I feel is not in keeping with what the stakeholder group was thinking,” said Smith Howard. “Again, this muddies the water.”

Deborah Friedman, the Department of Education’s director of policy and programs, said she couldn’t discuss those points in detail because it would impinge on the rule-making process, but she said the department has made some changes to the stakeholders’ recommendations in order to clarify their intent or make decisions where the group could not reach consensus.

“The department staff tried to stay as much as possible consistent with the consensus-based group,” she said. “We did make some changes where in our judgment they were needed.”

Another objection by Smith Howard is in regard to who has to abide by the Chapter 33 rules on restraint and seclusion. She said the stakeholder group included any entity that receives funding from the Department of Education, but the department scaled that list back considerably. The stakeholders favored including public school academies, Head Start programs, child development services contractees, students placed in out-of-state settings and hospital-based settings.

Friedman said most of those entities were stricken from the group’s recommendations because the Department of Education does not have jurisdiction over them. However, Smith Howard said the Chapter 33 rule rewrite is a prime opportunity to extend the government’s authority to entities that receive public funding.

“This would be a way for that to happen,” said Smith Howard. “If need be, we could get statutory support from the Legislature. Some of these entities have 80 to 90 percent public students. At what point do they become public schools?”

Friedman said the proposed rule is broader than the current rule but the department had to draw a line somewhere.

“Those are not places where the DOE has authority to regulate,” she said.

Smith Howard said the proposed rule, despite its problems, is a vast improvement from the current rule, particularly because it installs more follow-up procedures for educators after a restraint or seclusion of a student, and because it defines a complaint process for parents and families. Still, Smith Howard said she wishes the draft rule set stringent timelines for those processes to unfold.

“I applaud the idea that we have these processes, but I’m concerned that there’s no timeline for the local process,” she said. “A local school could determine that the process could take up to six months or more.”

Smith Howard said she intends to convene a core group of stakeholders later this month to examine the department’s proposed rule. A public hearing on Chapter 33 is scheduled for 3 p.m. Tuesday, Dec. 6, on the fifth floor of the Cross State Office Building at 111 Sewall St. in Augusta. Written comments can be sent by email to Deborah.Friedman@maine.gov or by mail to Deborah Friedman, Director, Policy and Programs, Maine Department of Education, State House Station #23, Augusta, ME 04333-0023. Written comments are due by 5 p.m. Friday, Dec. 16.